How does Sri Lanka define the notion of single sovereignty? Is it devoid of the notion of plurality? These are just two of the numerous thought-provoking questions which were thrown-up at a workshop conducted on July 25 at the HARTI, Colombo, to commemorate the 10th death anniversary of one of this country’s prime minds in constitution-making, Dr. Neelan Tiruchelvam.

The brain-storming discussion was organized by the ICES, Colombo, and was spearheaded by Upendra Baxi, Emeritus Professor of Law, University of Warwick, who was in Sri Lanka to deliver the annual Neelan Tiruchelvam Memorial Address, on July 26.

Speaking of Neelan and of his pivotal role in stimulating democratic development, this journalist could not help but be taken completely aback by the almost total lack of interest in the commemorative events concerning Neelan in some of those quarters which have customarily evinced an interest in Neelan and his work, such as the agencies of the state, ‘liberal’ think tanks and ‘peace’ NGOs. It is as if a Conspiracy of Silence is being allowed to envelope the epochal life and work of Neelan, easily one of Sri Lanka’s most erudite and internationally-renowned scholars in a multiplicity but closely related fields of study, such as, human rights, multiculturalism, minority protection, and constitutional development. However, The Island saluted the memory of Neelan by fully publishing Prof. Baxi’s Neelan Tiruchelvam Memorial Address titled, ‘Constitutional Utopias: A Conversation with Neelan Tiruchelvam’, perhaps the only local English language newspaper to do so.

Why this seemingly sudden inner paralysis and reluctance among sections of our polity to acknowledge the invaluable role of Neelan in taking Sri Lanka to a better tomorrow? Is it because communalism is enjoying a new lease of life in Sri Lanka currently? These are, in fact, relevant, topical issues for local political science research. Any takers?

Coming back to the workshop, Prof. Baxi, through his initial presentation raised a number of issues relating to constitution-making, which we in Sri Lanka do not seem to have even broached, leave alone researched. Syrupy rumours are rife about a new chapter in communal relations opening in Sri Lanka; talk is even widespread of ‘home grown’ solutions to our conflict but it is open to question whether any substantive studies have been undertaken by our universities and think tanks on the more vital issues which the workshop generated.

Since ‘Transformative Constitutionalism’ was the topic of discussion, Prof. Baxi outlined briefly the traditional foci of constitution-making: governance rights on the one hand and development and justice on the other. Besides, there are three other areas of study that have a close bearing on our understanding of constitutions and their classifications: written and unwritten constitutions, constitutional law as interpreted by the courts and constitutionalism, constitutional theory and ideology.

On the question of interpreting constitutions, three sub processes, as it were, are proving relevant: civil society interpretations of constitutions, citizens’ interpretations of constitutions and ‘insurgent subjectivities’ or the perceptions of insurgent groups on the shape constitutions need to take.

Arising from these considerations, are two questions of relevance to Sri Lanka: First, are such classifications worthwhile, second, how may we relate them to non-federal states? Since insurrectionary violence aimed at establishing states on new constitutional foundations is not unfamiliar in the South Asian region, the questions could also be raised: Could there be ‘ethical violence’ outside the state project? What, in fact, is the state? What is it that ‘legitimizes’ constitutional transformation?

When the workshop met for the second session, Prof. Baxi in attempting to understand and apply his ideas on ‘Transformative Constitutionalism’ to the Lankan context, raised the following questions, among many others: What are the elements of continuity and discontinuity between colonial constitutionalism and post colonial constitutionalism? How have people and thinkers distinguished between diversity and plurality, given that plurality is seen as an ineradicable social fact? How do we understand recent history in terms of plurality? What happens to women in reasonable plurality? Will one opt to be a member of the Supreme Court of Sri Lanka and handle the 13th amendment?

Responding to these posers, Dr. Rohan Edrisinghe of the Colombo University said that Sri Lanka had ‘regressed far in constitutionalism’. In fact, Sri Lanka has tried to ‘work constitutions with a parliamentary sovereignty mindset’, whereas, what is exemplary is South African-style constitution-making. On the other hand, we in Sri Lanka have constitutions that reflect ‘aspirations of people in power’. Sri Lanka is now in times characterized by ‘crude populism’. Now we are confronted with ‘intentional and deliberate’ violations of constitutions.

Dr. V. T. Tamilmaran, also of the Colombo University said that the intolerance shown by organs of the state in their dealings with society was a cause for concern. Since the 13th amendment was ‘imposed by the state’ the question arises as to what extent it is consistent with popular sovereignty. He also said that not all plural societies are divided societies.

SLMC leader Rauf Hakeem said that some ‘paranoid judgements’ had ‘done damage to the judicial system’. The state is failing seriously in Mankulam in relation to rehabilitation work, he said.

Dr. Jayampathy Wickremeratne said that Sri Lanka needs a ‘constitutional structure which majorities cannot take away. We need a new constitution with safeguards for powers given’. State power for minorities is vital.

Minister of Science and Technology and chairman of the All Party Representatives Committee Prof. Tissa Vitarana said that what is more ‘horrendous’ than human rights violations is poverty. He said that there is ‘genuine fear’ among the Sinhala-Buddhist representatives in the APRC. They see the LTTE and separatism on the one side and a Tamil Raj on the other side. The minister said that the ‘LTTE philosophy’ was still alive and the government has to carefully neutralize it. The term ‘unitary’ has to be ‘factored into our equation’. He said that the President is ‘committed to some sort of political solution’.